The Digital Networks Act and the original sin of the copper switch-off

The Digital Networks Act (DNA), the European Commission’s proposed overhaul of the EU’s electronic communications framework, contains one of its most contentious provisions. The proposal would require all Member States to switch off copper networks by 2035, despite questions over whether the measure would actually accelerate fibre deployment and without providing compensation to affected operators.

A legal opinion commissioned by Connect Europe and signed by Roberto Mastroianni, Professor of European Union Law at the University of Naples Federico II and former Judge and President of a Chamber of the General Court of the European Union from 2019 to 2025, explains in technical terms what many had already sensed politically: the measure is legally untenable and could open the door to litigation capable of paralysing the entire proposal.

The opinion identifies six grounds of incompatibility with primary EU law: an incorrect legal basis; violation of the principle of neutrality regarding Member States’ property ownership regimes; breaches of subsidiarity and proportionality; unjustified limitations on the fundamental rights to conduct a business and to property; and discrimination between operators.

The Commission’s own warnings

One preliminary fact deserves attention. The Commission’s own Regulatory Scrutiny Board issued a negative opinion on the accompanying impact assessment in October 2025, identifying serious deficiencies, including the absence of adequate economic analysis, failure to demonstrate that the mandatory switch-off was necessary and proportionate, and a lack of transparency regarding the methodology used to estimate impacts. 

A second opinion, issued in December 2025, was positive with reservations but confirmed significant shortcomings, including unreliable projections, insufficient treatment of key uncertainties and a failure to quantify costs across all options.

A measure whose necessity the Commission struggled to demonstrate convincingly to its own internal review body may face an even more difficult test under judicial scrutiny.

A shaky legal foundation

The most significant issue concerns the legal basis. The proposal relies on the Treaty provision authorising legislative harmonisation for the internal market. Yet the Court of Justice has long established that mere divergence between national laws is insufficient. 

There must be a concrete obstacle to the exercise of fundamental freedoms.

The landmark judgment remains Germany v Parliament and Council (C-376/98), in which the Court annulled the Tobacco Advertising Directive because the legislature had invoked the harmonisation provision without identifying a genuine obstacle to the internal market. The coexistence of copper and optical fibre networks reflects different stages of infrastructure development rather than barriers to freedom of establishment or the free provision of services.

The underlying objective, accelerating the deployment of next-generation networks, belongs instead to the realm of industrial policy, where the Treaties confer only supporting competences on the Union and explicitly exclude harmonisation. Using an internal market legal basis to pursue objectives linked to a supporting competence risks circumventing the principle of conferral.

The proposal’s preamble compounds the difficulty. The recitals dealing with the copper switch-off contain no explanation of why the measure constitutes a necessary harmonisation intervention. This may amount to a separate breach of the duty to state reasons and could itself provide grounds for annulment.

The missing evidence behind the switch-off

On proportionality, the opinion raises equally serious concerns. The mandatory switch-off fails the three-part test of suitability, necessity and proportionality in the strict sense.

On suitability, the stated objective is to accelerate migration to fibre-to-the-home (FTTH). Yet the measure targets areas already served by optical fibre and forces migration on users who could already choose FTTH voluntarily. The Commission has not demonstrated that switching off copper would drive users towards FTTH rather than cable, fixed wireless or mobile networks. 

This missing causal link was one of the issues explicitly highlighted by the Regulatory Scrutiny Board.

On necessity, the Commission limited its assessment to variations of the switch-off scenario without adequately examining less intrusive alternatives such as incentives for voluntary migration, awareness campaigns or measures aimed at expanding fibre coverage in underserved areas.

On proportionality in the strict sense, accelerating migration by a few years compared with the likely natural pace of transition does not appear commensurate with the extent of the interference in operators’ rights.

Subsidiarity and consumer choice

The subsidiarity dimension adds a further layer of difficulty. The existing regulatory framework already gives national regulatory authorities the tools required to manage the transition from copper to optical fibre. In several Member States, that process is already underway or nearing completion through voluntary plans agreed with operators.

The Commission’s explanatory memorandum offers only a general assertion that divergent national approaches could fragment the single market. It does not demonstrate that existing national instruments are insufficient. The Treaties require a qualitative, and where possible quantitative, explanation of why the objective can be achieved more effectively at Union level. That justification is absent.

The consequences for end users are too rarely considered. Mandatory decommissioning could reduce consumer choice, disrupt converged offers combining fixed telephony, broadband and IPTV, and, where fibre deployment remains incomplete, push users towards fixed wireless or satellite solutions that may be qualitatively inferior to the FTTC infrastructure being removed. Such outcomes sit uneasily alongside the Charter’s requirement to ensure a high level of consumer protection.

Property rights, discrimination and litigation risk

The property dimension raises further concerns. The proposal mandates the decommissioning of operational private infrastructure that has been lawfully acquired, remains fully functional and continues to generate income, yet provides no compensation. The resulting effects are comparable to those of indirect expropriation.

Under EU law, the sacrifice imposed on property owners must remain proportionate to the collective benefit. Where a measure assumes an expropriatory character, fair compensation is generally expected.

The frequently cited comparison with the analogue-to-digital television transition is not entirely persuasive. That transition concerned the radio spectrum, a scarce public resource whose reallocation freed capacity for new services. Copper is not a scarce resource. Its elimination would simply remove a functioning private asset, creating economic loss for the owner without an equivalent public gain.

The proposal also raises questions of equal treatment. Decommissioning obligations apply exclusively to copper networks, while cable and fixed wireless networks, which also provide broadband services and compete directly with both copper and optical fibre, face no equivalent requirement.

Copper operators would be required to dismantle their infrastructure, while operators of alternative networks could continue operating and may indirectly benefit from the resulting migration of users. If the objective is to accelerate migration to FTTH, it is not immediately clear why the burden falls solely on copper operators while other technologies providing comparable services remain outside the scope of the obligation.

A proposal heading for the courts

The legal consequences could be significant. If adopted without substantial modification, the proposal may invite challenges before the Court of Justice, whether through a direct action for annulment or a preliminary reference on validity from a national court. 

According to the opinion, each of the grounds identified could independently support such a challenge.

The opinion arrives at a sensitive stage in the legislative process. The DNA is currently under examination by the European Parliament and the Council, and questions surrounding the legal basis are likely to become increasingly prominent during interinstitutional negotiations.

The broader political question remains open. Accelerating the transition from copper to FTTH is a legitimate policy objective that operators do not dispute in principle. The issue is not whether the transition should occur, but whether the chosen instrument is legally sound and whether the proposed mechanisms, including a mandatory deadline, compulsory switch-off, absence of compensation and limited consideration of less intrusive alternatives, remain within the constraints imposed by primary EU law.

A legislative text vulnerable to annulment before the Court of Justice does not accelerate the transition to optical fibre. It risks delaying it.

Yet the problem extends beyond legal form. A mandatory switch-off that fails to demonstrate it will expand fibre coverage, that may push users towards inferior alternatives, that removes functioning infrastructure without compensation and that lacks a verifiable causal link to its stated objective is not merely a poorly designed instrument. It may be the wrong instrument altogether.

The switch-off provisions should not simply be rewritten. They should be removed from the DNA and replaced with a proportionate framework that encourages investment while preserving technological neutrality and avoiding unnecessary market distortions.